In Re The Estate Of Allan B. Pratt ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Estate of ) No. 81376-5-I
)
ALLAN B. PRATT, )
)
Deceased. )
)
JOSEPH JACOBS, personal )
representative, )
)
Appellant, )
) DIVISION ONE
v. )
)
BEVERLY SANDERS, ) UNPUBLISHED OPINION
)
Respondent. )
)
MANN, C.J. — Joseph Jacobs, the personal representative of the estate of Allan
Pratt, appeals the trial court’s order correcting several scrivener’s errors pursuant to CR
60(a). Jacobs contends that the trial court abused its discretion because the error was
judicial in nature and could not be corrected pursuant to CR 60(a). We affirm.
I.
Pratt executed his last will and testament on February 26, 2014. The will
identified Beverly Sanders, Pratt’s then-fiancé, and his three sisters, Narelle Bukala,
Linda Pratt, and Cheryl Hayden as his beneficiaries and indicated the estate should be
Citations and pin cites are based on the Westlaw online version of the cited material.
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split evenly among the beneficiaries. The will appointed Joe Jacobs as the personal
representative of the estate and was duly witnessed by two disinterested individuals.
A subsequent document was drafted on July 18, 2017 stating that “Allan Pratt
changed [his] will[,] [t]he monies from Vanguard & Sale of Condo go to the BEE & 110
Sick/Needy and to the people listed below” and listed 13 new individuals and Doctors
Without Borders, as purported beneficiaries, allocating various amounts of money to
those individuals. The document also stated:
Bank accounts and all other monies to Joe Jacobs[.] Chrysler Car to Joe &
Carole Jacob’s for Angela’s 16th Birthday (if it works out)[.] The Bus
(motorhome) to Joe & Carole Jacobs. Will need to pay it off. Use money
from Vanguard to pay balance of loan. Beverley Sanders $10,000 from
bank accounts. Need to try and get money out of bank in Australia. Note
will have to find ex-wife for that to happen. It is up to Joe Jacobs to take
care of all of this. Joe can use his discretion to make this happen.
The document was typed with handwritten notes but was not signed by Pratt or
witnessed.
Pratt died on December 12, 2017. Jacobs submitted Pratt’s last will and
testament and the document to probate on February 12, 2018. On February 14, 2018,
the court admitted the will to probate and entered the following conclusion of law: “the
Last Will and Testament of Allan B. Pratt dated the 12th day of December, 2017, offered
herein for probate shall be and hereby is established as the Last Will and Testament,
and shall be and hereby is admitted to probate.” The court confirmed and appointed
Jacobs as personal representative of the estate. On February 16, 2018, Jacobs filed an
“affidavit of mailing of notice of appointment and pendency of probate” to all the original
devisees and the devisees under the document.
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In addition, Jacobs mailed the original devisees, requests to disclaim their
interests under the will, explaining there was a second will, which modified the first.
Jacobs acted as if the document was admitted to probate as a codicil that modified
Pratt’s last will and testament. The letter to Sanders stated:
It is my understanding that you have spoken to Joseph Jacobs regarding
this estate. He has indicated that you have elected to renounce and
disclaim your one-quarter interest in and to the estate of Allan B. Pratt as
set forth in his Last Will and Testament dated February 26, 2014.
However, you do not renounce or disclaim your share as stated in his
amendment to his Will. Therefore, I have enclosed a
Disclaimer/Renunciation of Interest for your review and signature. If you
are in agreement with its contents, please sign and return to me in the
envelope provided.
On February 26, 2018, Sanders signed the disclaimer and renunciation of interest.
Sanders was not represented by an attorney when she signed the waiver.
On May 4, 2018, Jacobs filed a petition to initiate a Trust and Estate Dispute
Resolution Act (TEDRA) action. The action was initiated because Bukala “called into
question the legitimacy of the codicil on file” and indicated that Jacobs “determined it
[was] in the best interest of the Estate, the Estate’s creditors, and the Estate’s
beneficiaries to bring this matter before the Court in order to give all interested parties
an equal opportunity to be heard.”
On May 22, 2018, Bukala filed a petition to contest the purported codicil. On July
6, 2018, Bukala filed a response to the TEDRA action, stating that the purported codicil
cannot be probated because “it was not signed by the deceased, was not witnessed,
and did not refer to the Last Will and Testament.” On August 30, 2018, Sanders filed a
declaration in support of Bukala’s contest of the purported codicil. Bukala failed to
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personally serve Jacobs with the documents during the 90-day period and did not file or
serve a TEDRA summons.
On August 24, 2018, Jacobs filed a motion to voluntarily dismiss the TEDRA
action pursuant to CR 41, indicating that it was no longer beneficial to the estate for it to
pursue the petition and that no counterclaim or counter-petition had been filed or
served. On September 7, 2018, a hearing was held on Jacobs’s motion for voluntary
dismissal, none of the beneficiaries appeared, and the court dismissed the TEDRA
action.
On December 4, 2018, Sanders filed a CR 60(a) motion for clarification,
requesting
entry of an Order specifying whether the purported codicil is admitted to
probate in this matter. This request is being made because [Jacobs]
appears to be proceeding as though the purported codicil controls the
distribution of assets even though no reference was made to the purported
codicil in the Petition, the Order or the Certificate of Testimony. Whether
the Last Will and Testament or the purported codicil controls is critically
important, given the significant difference in distributions that each
document makes.
Jacobs filed a response to the motion, arguing Sanders was using CR 60(a) to
improperly and untimely contest the will and that the codicil was clearly admitted to
probate in the original order. Further, Jacobs argued, Sanders had already disclaimed
her interest in the will and recognized that the purported codicil had been admitted to
probate.
A hearing was scheduled on January 25, 2019. At the time of this hearing, the
Lewis County Local Civil Rule (LCR) 3(A)(5) required that “All motions shall be
confirmed for argument through the Clerk’s Office by 12:00 noon two court days prior to
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the scheduled argument. Confirmations shall be made by calling the County Clerk at
(360) 740-2704. Motions not confirmed will be stricken unless the parties and the Court
agree otherwise.” Jacobs’s attorney, James Buzzard, noted that the hearing was not
confirmed as of 4:50 p.m. on January 24, 2019 and decided not to appear, believing
that the hearing would be struck.
The hearing was held without Jacobs or Buzzard present. After waiting 30
minutes for Jacobs or his attorney to arrive, the court administrator called Buzzard and
told him that the hearing was scheduled and requested his appearance within 15
minutes. When Buzzard did not appear, the trial court waived the requirements of LCR
3(A)(5) and proceeded with the hearing. The court concluded that the order admitting
the will to probate had several scrivener’s errors and ordered a correction. Specifically,
the order incorrectly stated the date of the last will and testament, the “last will and
testament of Allen Pratt dated the 12th day of December, 2017,” because December 12,
2017 was neither the date of the will, nor the alleged codicil, it was the date of Pratt’s
death. The court ordered that it “be corrected to recite that the will dated February 26th,
2014, is admitted to probate.” Further, the order admitting the will to probate did not
reference the purported codicil dated July 18th, 2017. The court ordered clarifying
language to state that “[t]he document dated July 18th, 2017, is not a codicil and is not
admitted to probate.”
Jacobs filed a written objection to the January 25th hearing. Jacobs argued that
the trial court violated LCR 3(A)(5) because the rule states that unconfirmed hearings
“will” be stricken and is thus mandatory. Further, Jacobs argued that he did not agree
to the hearing as required by LCR 3(A)(5). Jacobs made these arguments at the
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presentation hearing on February 1, 2018. The trial court rejected Jacobs’s arguments
and entered the order. Jacobs appeals.
II.
Jacobs contends the record demonstrates that the court’s original intent was to
admit the codicil to probate because the record reflects that all the documents submitted
to the court were admitted to probate. We disagree.
CR 60(a) provides, “Clerical mistakes in judgments, orders or other parts of the
record and error therein arising from oversight or omission may be corrected by the
court at any time of its own initiative or on the motion of any party and after such notice,
if any, as the court orders.” “In deciding whether an error is ‘judicial’ or ‘clerical,’ a
reviewing court must ask itself whether the judgment, as amended, embodies the trial
court’s intention, as expressed in the record at trial.” Presidential Estates Apartment
Assoc. v. Barrett, 129 Wash. 2d 320, 326, 917 P.2d 100 (1996).
If the answer to that question is yes, it logically follows that the error is
clerical in that the amended judgment merely corrects language that did
not correctly convey the intention of the court, or supplies language that
was inadvertently omitted from the original judgment. If the answer to that
question is no, however, the error is not clerical, and therefore, must be
judicial. Thus, even though a trial court has the power to enter a judgment
that differs from its oral ruling, once it enters a written judgment, it cannot,
under CR 60(a), go back, rethink the case, and enter an amended
judgment that does not find support in the trial court record.
Barrett, 129 Wash. 2d at 326.
We review issues of statutory interpretation de novo. State v. Dennis, 191 Wash. 2d
169, 172, 421 P.3d 944 (2018). We ascertain the meaning of a statute from its plain
language. State v. Armendariz, 160 Wash. 2d 106, 110, 156 P.3d 201 (2007). If the plain
language is clear, then our inquiry ends. Armendariz, 160 Wash. 2d at 110. Only if the
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language is ambiguous do we look to the legislative history to discern the legislative
intent. Armendariz, 160 Wash. 2d at 110-11.
Jacobs contends, without citing to any authority, that RCW 11.20.020 1 requires
the court to specify if it is rejecting any portion of the documents offered to probate. In
turn, Jacobs contends that the order did not specifically reject the codicil, thus it was
admitted to probate.
Jacobs’s argument fails. While the statute states “the court may immediately
hear the proofs and either probate or reject such will as the testimony may justify,” a
rejection of certain documents is implicit when the order does not mention the document
as admitted to probate. RCW 11.20.020 (emphasis added). Jacobs argues here that
the plain language of RCW 11.20.020 requires the trial court to explicitly probate or
reject each document before it, but the record before us does neither. Instead, the
purported codicil was not mentioned in the order. Jacobs’s position does not address
the deficiency in the order and instead asks this to court to find the purported codicil
was implicitly admitted because it was not referenced in the order. We decline this
invitation.
The purported codicil is legally deficient. A codicil “means a will that modifies or
partially revokes an existing earlier will. A codicil need not refer to or be attached to the
earlier will.” RCW 11.02.005(2). A will “means an instrument validly executed as
required by RCW 11.12.020.” RCW 11.02.005(20). In turn, RCW 11.12.020 requires
that
1
RCW 11.20.020 states: “applications for the probate of a will and for letters testamentary, or
either, may be made to the judge of the court having jurisdiction and the court may immediately hear the
proofs and either probate or reject such will as the testimony may justify.”
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[e]very will shall be in writing signed by the testator or by some other
person under the testator’s direction in the testator’s presence, and shall
be attested by two or more competent witnesses, by subscribing their
names to the will, or by signing an affidavit that complies with RCW
11.20.020(2), while in the presence of the testator at the testator’s
direction or request.
Viewing the record before us, the codicil does not meet the requirements of RCW
11.20.020. The attachments to the petition include “The Last Will and Testament of
Allan B. Pratt And Codicil” and another untitled document, which is the purported codicil.
While the petition to admit the will to probate attached the purported codicil, the petition
does not reference it, or a document dated July 18, 2017.
The order admitting the will to probate mentions only “The Last Will and
Testament of Allan B. Pratt.” The purported codicil is not mentioned in the order and it
is clearly a separate document from the will because it has a different date from the will.
The record does not support the conclusion that the trial court intended to admit the
purported codicil to probate.
Jacobs contends that since the order references the list of beneficiaries
mentioned in both the will and the codicil that the trial court must have intended to admit
the purported codicil. This argument fails. The list of beneficiaries is mentioned under
the section “Heirs” and states “Allan B. Pratt left surviving him the following heirs,
legatees, and devisees.” Heirs, however, “denotes those persons, including the
surviving spouse or surviving domestic partner, who are entitled under the statutes of
intestate succession to the real and personal property of a decedent on the decedent’s
death intestate.” RCW 11.02.005(6). Thus, a person may be an heir but not a
beneficiary of a will. The list is insufficient to demonstrate that the trial court clearly
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intended to admit the purported codicil to probate when the record as a whole
demonstrates that the purported codicil failed to meet the requirements of RCW
11.20.020 and the order only referenced the last will and testament.
Since the scrivener’s errors were clear from the record, we conclude that the trial
court did not abuse its discretion when it clarified that the purported codicil was not
admitted to probate. 2
III.
Jacobs contends that Sanders disclaimed her interest in the will and
acknowledged the existence of the purported codicil, barring her CR 60(a) motion. We
disagree.
“Three requirements compose a claim fit for judicial determination: if the issues
raised are primarily legal, do not require further factual development, and the
challenged action is final.” First United Methodist Church of Seattle v. Hr’g Exam’r for
Seattle Landmarks Preserv. Bd., 129 Wash. 2d 238, 255-56, 916 P.2d 374 (1996). We
decline to address Pratt’s disclaimer argument because it is not ripe for review. The
trial court did not make any determination about the enforceability of the disclaimer and
thus the record requires further factual development.
IV.
Jacobs contends that the trial court erred in holding a hearing and deciding
Sanders’s motion without Jacobs present when Sanders failed to confirm the hearing as
required by LCR 3(A)(5). We disagree.
2
We decline to address Jacobs’s argument that this court should conclude that Sander’s CR
60(a) motion was actually a will contest and barred by the four-month statute of limitations because we
conclude that the trial court did not abuse its discretion in its clarification order.
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“[T]he superior court has inherent power to waive its own rules” and we presume
the superior court had sufficient cause to waive a local rule, absent evidence of an
injustice. Foster v. Carter, 49 Wash. App. 340, 343, 742 P.2d 1257 (1987). At the time of
the hearing, LCR 3(A)(5) stated “All motions shall be confirmed for argument through
the Clerk’s Office by 12:00 noon two court days prior to the scheduled argument.
Confirmations shall be made by calling the County Clerk at (360) 740-2704. Motions
not confirmed will [be] stricken unless the parties and the Court agree otherwise.” 3
Jacobs acknowledges that the trial court has inherent power to waive its own
rules, but contends that here, the waiver deprived “Jacobs of the opportunity to appear
and respond to the motion.” The record does not support this contention.
The hearing was at 9:30 a.m. and at 10:00 a.m. the court administrator called
Buzzard to notify him that he was late for the hearing and gave him 15 minutes to arrive.
The court waited until 10:30 a.m. before proceeding. On the record, the court indicated
that Buzzard “took the position with court administration that since this argument had
not been confirmed by the moving party that under local rule the case was dismissed or
that the hearing was stricken.” The court indicated that
rule has never been allowed to be used offensively like that. That
confirmation rule is for the court may strike it. But we normally hear all
cases whether they’re confirmed or not. It’s more of a convenience for the
court than anyone else. Mr. Buzzard knows that. He’s raised that issue
before. He’s never been allowed to strike a [case], an argument.
Further, the court reviewed Jacobs’s response to Sanders’s CR 60 motion. Critically,
Jacobs fails to identify any evidence of an injustice because Jacobs has not explained
3
LCR 3(A)(5) has since been amended to state: “Motions not confirmed will not be stricken
without consensus of both parties and the court.”
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how his in-person argument would have differed from his written response to Sanders’s
CR 60(a) motion.
Jacobs’s has failed to identify evidence of an injustice to the court hearing the
motion without his presence, thus the trial court was within its discretion to waive the
local rule.
V.
A party requesting attorney fees on appeal is entitled to fees if “applicable law
grants to a party the right to recover reasonable attorney fees.” RAP 18.1. RCW
11.96A.150 provides:
(1) Either the superior court or any court on appeal may, in its discretion,
order costs, including reasonable attorneys’ fees, to be awarded to any
party: (a) From any party to the proceeding; (b) from the assets of the
estate or trust involved in the proceedings; or (c) from any nonprobate
asset that is the subject of the proceedings.
Jacobs requests an award of attorney fees for having to oppose Sanders’s
motion in the trial court and attorney fees on appeal. Since we find in favor of Sanders,
we deny Jacobs’s request for attorney fees. Sanders requests an award of attorney
fees on appeal. As the prevailing party, we grant her reasonable attorney fees from the
assets of the estate.
Affirmed.
WE CONCUR:
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